[HISTORY: Adopted by the Common Council of the City of Olean as indicated in article histories. Amendments noted where applicable.]
Article I Best Value for Public Works Contracts
Article II Best Value Procurement Policy
[Adopted 11-24-2015 by L.L. No. 6-2015]
Editor's Note: This local law also superseded former Art. I, Best Value for Public Works Contracts, adopted 2-25-2014 by L.L. No. 1-2014.
It is the intent of this article to enhance the City's ability to identify the lowest responsible bidder on public works construction projects by instituting more comprehensive submission requirements and an evaluation system which is in compliance with New York State General Municipal Law. The City, based upon its experience, has determined that quality workmanship, efficient operation, safety, and timely completion of projects are not necessarily assured by awarding a public works contract solely on the basis of the low price. This article establishing uniformity of guidelines for determining the responsibility of bidders will assure efficient use of taxpayer dollars, will promote public safety, and is in the public interest.
This article shall apply to construction projects subject to the competitive bidding requirements of General Municipal Law § 103 and advertised for bids on or after the effective date.
For purposes of this article, the term "public works" shall mean the following: any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, moving, wrecking, painting, decorating, demolishing, and adding to or subtracting from any public building, structure, highway, roadway, street, alley, bridge, sewer, drain, ditch, sewage disposal plant, water work, parking facility, railroad, excavation, or other project, development, real property, or improvement, or to any part thereof, whether or not the performance of the work herein described involves the addition to, or fabrication into, any structure, project or development, real property or improvement herein described of any material or article of merchandise, which is paid for out of public funds in an amount exceeding $250,000. The term also includes any public works leased by the City under a lease containing an option to purchase exceeding the threshold of $250,000 established hereby.
New York State Vendor Responsibility Questionnaire. Before a public works contract may be awarded pursuant to General Municipal Law § 103, contracting officials shall determine the responsibility of potential contractors and subcontractors by reviewing uniform questionnaires submitted by each contractor and subcontractor for the project. All bidders are required to submit the New York State Vendor Responsibility Questionnaire For-Profit Construction (CCA-2) form (hereinafter "uniform questionnaire") with appendices A, B, and C to ascertain information as to integrity, responsibility and competence.
List of subcontractors. Each bidder shall submit a list of the subcontractors used in the calculation of the bid upon submission of the uniform questionnaire.
Conformity by subcontractors. Subcontractors shall complete the uniform questionnaire and meet the same responsibility standards as contractors to be eligible to work on public work contracts. Questionnaires shall be completed by subcontractors no later than the time and date of the award. The City reserves the right to reject the bid on the basis of unsatisfactory questionnaire responses by a subcontractor designated to perform work by the bidding general contractor.
All general bidders and sub-bidders (including sub-subbidders) for construction projects funded by the City of Olean as set forth above in § LL4.5-2 shall, as a condition of the bid, agree, in writing, that they shall comply with the obligations established by this article.
The City shall require that all bidders fill out the uniform questionnaire in order to ascertain the financial responsibility, accountability, reliability, skill, judgment, and integrity of the apparent lowest bidder.
The City shall utilize the Guidelines for Responsibility Determinations as set forth in Executive Order No. 170 (9 NYCRR 4.170) in evaluating the responsibility of contractors and determining the lowest responsible bidder.
Contractors and all subcontractors shall properly classify their workers as employees rather than as independent contractors, unless those workers meet the definition of "independent contractor" as defined by the Internal Revenue Service, and shall treat said employees accordingly for purposes of workers compensation insurance coverage, unemployment insurance, employment taxes, and social security taxes.
The contractors and all subcontractors shall require each employee to sign in and out at the beginning and end of each day, and list next to his or her name his or her craft, and to provide such information to the City Director of Public Works ("the Director") on a biweekly basis. Such information shall be kept in the Commissioner's office for a period of three years, and copies of same shall be made available to the public immediately upon Freedom of Information Law (FOIL) request.
The Director, or other department head soliciting public works bids, shall distribute to all bidders a copy of this article and the uniform questionnaire, and thereafter collect from bidders all information required by this article, and keep such information in his/her offices for a period of three years, review of which will be made available to the public.
If a bidder fails or refuses to provide all the information required by this article, or provides false information, the bidder's bid will be rejected at the bid opening.
The Director shall post a list of the three low apparent bidders on the City of Olean website five days after the bid opening.
If the apparent lowest bidder is deemed not responsible, then the next lowest bidder will be reviewed and so on until the lowest bidder is deemed responsible and selected as the lowest responsible bidder. In the event a bidder fails to furnish the requested information, the bidder shall be deemed disqualified and determined to be not responsible, and the next lowest bidder shall become the apparent lowest bidder.
Not later than five calendar days prior to a final determination that the apparent lowest bidder is not responsible, the City will notify the party of same, in writing, stating the reasons and setting forth a reasonable time, date and place for the apparent low bidder to appear and be heard.
If the bid of the lowest responsible bidder appears disproportionately low when compared with estimates obtained by or on behalf of the City and/or compared to other bids submitted (10% or greater disparity), the City reserves the right to inquire further of the apparent lowest bidder to determine whether the bid contains mathematical errors, omissions and/or erroneous assumptions, and whether the apparent lowest bidder has the capability to perform and complete the contract for the bid amount.
If a bidder is found to have willfully violated New York Labor Law § 220 within the previous five years, that bidder shall automatically be deemed "not responsible," and his bid shall be rejected unless the Commissioner, subject to review by the Public Works Committee of the Olean City Legislature, determines otherwise. Otherwise, based on all of the information collected pursuant to this article and any other factor deemed relevant, the Commissioner of Public Works, or other department heads soliciting public works bids, shall determine if the apparent lowest bidder is in fact responsible.
Credit toward bid award. The following criteria shall be used as a credit toward a bid determining the lowest responsible bidder. If the City applies any credit(s) towards a bid, the credit(s) will not reduce the amount of a contract. EXAMPLE: $1,000,000 bid received a $50,000 local bidder credit. For purposes of determining the lowest bidder, the contractor's bid is $950,000. However, the contract price will remain $1,000,000.
The City shall apply a credit equal to 5% or $50,000, whichever is less, based on the local bidder's bid. A local bidder is an individual or business entity that establishes it has a place of business located in the county where the work is to be performed for at least one year prior to the deadline for submitting bids, and can demonstrate for one year prior to the deadline for submitting bids that it has paid a minimum of $5,000 in sales tax in the county where the work is to be performed. In the event a local bidder does not bid on the project, a bidder that establishes it has a place of business located within an adjacent county in New York where the work is to be performed for at least one year prior to the deadline for submitting bids will receive a credit equal to 1%, or $10,000, whichever is less; and
The City shall apply a credit equal to 2% or $20,000, whichever is less, towards the bid of a bidder with a local workforce. "Local workforce" means at least 25% of the bidder's construction employees reside in the county where the work is to be performed or in a county adjacent to the county where the work is to be performed. The bidder is not required to have a place of business in the county where the work is to be performed for this credit to apply.
It is the sole responsibility of the bidder to request the credit based upon any of the above criteria.
It is the sole responsibility of the contractor to comply with all submission requirements at the time it submits its bid to the City. The submission requirements also apply to all subcontractors, except that the contractor shall submit all subcontractor questionnaires to the City of Olean no later than the date and time of the contract award. Contractor and/or subcontractor submissions deemed nonresponsive will result in automatic rejection of the bid.
Any bidder or subcontractor bidder who fails to comply with any of the obligations described as determined by the Commissioner may, in the sole discretion of the City, and only following an opportunity for the bidder to be heard, be subject to one or more of the following sanctions:
Temporary suspension of work on the project until compliance is obtained; or
Withholding by the City of payment due under the contract until compliance is obtained; or
Permanent removal from any further work on the project; or
Liquidated damages payable to the City in an amount equal to 5% of the dollar vahie of the general contract.
In addition to the above sanctions, any contractor or subcontractor, or principal officer who has been determined to have violated any of the provisions of this article shall be barred from performing any work on future contracts awarded by the City for six months for the first violation, three years for the second violation, and permanently for the third violation.
Any sum collected as a penalty pursuant to this section shall be applied toward enforcement and administration costs.
All information submitted by a contractor or subcontractor pursuant to this article is a public record and shall be immediately available to any person upon request made pursuant to the Freedom of Information Law (Public Officers Law Article 6).
The requirements of this article are a material part of the bid documents, and the contract and the successful bidder shall insert this article in all subcontracts.
[Adopted 3-11-2014 by L.L. No. 2-2014]
The Olean City Common Council of the City of Olean hereby enacts the following article pursuant to the State of New York General Municipal Law Section 103(1) and of all other applicable laws.
Accordingly, the City of Olean hereby authorizes the use of the best value standard as part of the City procurement policies.
Best value is defined in New York State Finance Law Section 163. When awarding contracts under the best value standard, the City must consider the overall combination of quality, price and other elements of the required commodity or service that in total are optimal relative to the needs of the City of Olean. Use of the best value standard must rely, wherever possible, on objective and quantifiable analysis. The best value standard may identify as a quantitative factor whether offers are small businesses or certified minority- or women-owned business enterprises as defined in New York Executive Law Section 310. The best value standard may only be used for purchase contracts, which includes contracts for service work, but excludes any purchase necessary for the completion of a public works contract pursuant to Article 8 of the Labor Law.
The City of Olean shall update its procurement policy in accordance with the provisions of this article.